THE LAW OF TREASON IN ENGLAND IN THE LATER MIDDLE AGES pot

THE LAW OF TREASON IN ENGLAND
IN THE LATER MIDDLE AGES
CAMBRIDGE STUDIES
IN ENGLISH LEGAL HISTORY
Edited by
D.
E. C. YALE
Fellow of Christ's
College,
Cambridge,
and Reader in English Legal History;
Barrister-at-Law, Inner Temple
THE LAW OF TREASON
IN ENGLAND
IN THE
LATER MIDDLE AGES
BY
J.G.BELLAMY
Associate Professor of History
Carleton University, Ottawa
CAMBRIDGE
ATTHE UNIVERSITY PRESS
1970
PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE
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©
Cambridge University Press 1970
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is
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First published 1970
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CONTENTS
Editor's
Preface
vii
Preface xv
List of Abbreviations xvii
1 The Medieval Concept of Treason i
2 The Treatise Writers and the English Law of Treason
at the End of the Thirteenth Century 15
3 The Origins of the English State Trial 23
4 The Great Statute of Treasons 59
5 The Scope of Treason, 1352-1485 102
6 Treason before the Courts, 1352-1485 138
7 The Origins and the Early History of the Act of Attainder 177
8 Treason and the Constitution 206
Appendixes
I Misprision 216
II Petty Treason 225
III Illustrative Materials 232
Select
Bibliography
239
Index 246
EDITOR'S PREFACE
'Treason', wrote Maitland,
1
'has a history all of its own.' Never-
theless that history has not previously received connected and

comprehensive study in the literature of legal history, and it is
therefore with the greatest pleasure that my first duty as general
editor of this series of studies is to commend to all those interested
Professor Bellamy's survey of the subject at large over the span
of the thirteenth, fourteenth and fifteenth centuries.
The history of the law of treason has diverse origins and its
story many turning points. One of the most critical occurred in
the period with which this book is concerned, that is, the Statute
of Treasons of 1352. As Plucknett
2
has remarked, 'the history of
treason in the middle ages is as distinctive as the nature of the
offence. It is one of the very few crimes which were defined by
statute during this period; and it is one of the equally few crimes
whose scope was extended by "construction". Unlike treason, the
medieval felony was (generally speaking) neither statutory nor
constructive'.
But the clear difference between treason and felony is the
outcome of time and of refinement by lawgivers and lawyers. The
further back in time
we
go,
the less distinct do the lines of difference
appear and indeed in the feudal dawn they vanish away. Originally
the idea of felony included much of what later became separate
categories of treason, for in origin felony denoted a breach of
feudal faith or fidelity on account of which the vassal's fee or
tenement escheated to his lord. As the notion of felony was ex-
tended to the more serious kinds of crime, so the incidence of
escheat multiplied; or we may with equal plausibility regard the

widening of the incidence of escheat as extending the scope of
felony beyond its earliest feudal context. Indeed if as a matter of
historical development the legal effect dictated the classification,
it is possible to see the points of definition as so many attempts to
reach grounds of compromise between the conflicting claims of
feudal escheat and royal forfeiture. Thus if the statute of 1352
can be regarded as 'a rude compromise',
3
then it bears some
1
Pollock and Maitland, History of
English
Law,
11,
502.
2
Concise
History of
the Common
Law, p. 443.
3
Such was Maitland's view. Pollock and Maitland, n, 508. But Professor
Bellamy, pp. 21-2, sees less force in the economic considerations of forfeiture.
viii THE LAW OF TREASON IN ENGLAND
resemblance to the concession made by King John in his Great
Charter
1
where he promised that he would not retain the lands of
those 'qui convicti fuerint de felonia nisi per unum annum et unum
diem, et tune reddantur terre dominis feodorum'. Here then, as

Maitland believed, was one peculiarly strong incentive to formulate
a law of treason, 'for if there was any crime which would give the
offender's land not to his lord but to the king, that crime could not
be a mere felonia'. So treason was felony but more than felony,
and long after the categories had become divided, the lawyers
moved by unconscious instincts of the past wrote both words,
treason and felony, into their indictments. As late as the eigh-
teenth century Blackstone,
2
after noticing that the words of the
statute of 1352 provide that parliament may declare of future
dubious crimes 'whether they be treason or
other
felony', remarks
that 'all treasons therefore, strictly speaking, are felonies, though
all felonies are not treason*.
It is clear that the general idea of treason and the particular
understanding of the 1352 Act must 'accommodate what came to
be known as petty treason'.
3
The Act specified as 'another sort' of
treason the killing of a husband by a wife, of a master by his
servant, and the killing of a prelate by his subject, secular or
religious. But there was no inclusion of the killing of a feudal lord
by his vassal or tenant. The omission has often been remarked.
'Perhaps', suggests Professor Milsom,
4
'the original sense of
felony was too well remembered'. Certainly royal forfeiture never
reached into the last enclaves of the feudal world, the unfree or

customary lands within the lord's manor, and this sanctuary of
feudal society remained untouched, for as Hale
5
wrote long after
feudal principles had been shut into the closed community of each
manor, 'an attainder of treason or felony of a copyholder gives the
king no forfeiture, but regularly it belongs to the lord unless
special custom be to the contrary'. And that was, it seems, a
general rule applicable to all treasons, greater or lesser. Now the
lesser treasons set out in the Act gave escheat to the lord, not
forfeiture to the king,
6
and as Professor Bellamy
7
reminds us, 'the
1
Ch. 32.
2
Comm. IV. 94-5.
3
Milsom, Historical Foundations of the Common Law, p. 370.
4
Ibid.
5
Pleas of the Crown, 1, 360.
6
Other differences included the difference that petty treason was clergyable
till 1497. High treason lost that privilege much earlier. Pollock and Maitland, 1,
446:
'It is probable that already in the thirteenth century a clerk charged with

EDITOR'S PREFACE ix
process of trial in cases of petty treason was like that for any other
felony'. The difference lay in the mode of capital punishment.
Thus in the account of a trial of a servant indicted for wounding
and robbing his master as related in Placita
Corone
1
at the end of
the thirteenth century, the judge dwells on the treasonable nature
of the offence, yet 'the prisoner is sentenced merely to be hanged,
which he deserved for the theft alone, whereas had the case been
regarded as one of completed petit treason, we should have
expected some sort of additional punishment, such as drawing*.
If the servant had killed his master, doubtless he would have
suffered a traitor's death. But he did not; nevertheless the judge
insists on his treason.
But these difficulties are of our own making. Treason later
became a category of crime, or after the Act the lawyers came to
think of two categories of treason, and there is a gap fixed between
felonies and treasons. These categories however are the product
of time and change. The idea of treason as a type of crime was only
formed by degrees and the further one goes behind the Act so the
entity fades and the list collected in the Act and in earlier texts
becomes dispersed, and those parts which are attributable to
feudal origins lose their identity in the original felony. The 'petty'
traitor is guilty of aggravated felony. The homicides which are
collected in the Act (apart from those striking at regal government)
are merely those forms of aggravated or atrocious treachery to
which the name of treason is attached for the sake of the severer
high treason, at all events with one of the worst forms of high treason, such as

imagining the king's death or levying war against
him,
would in vain have relied on
the liberties of the church*. In this connexion it is worth noticing that when
Thomas Merks, bishop of Carlisle and courageous adherent of Richard II,
claimed in 1401 (KB. Roll, no. 559, m.4, crown) that he was an anointed
bishop and should not be arraigned before royal justices, the reply was: 'super
quo dictum est ei per eosdem iusticiarios quod premissa in indictamento
predicto contenta tangunt mortem domini regis et destruccionem totius regni
Anglie et consequenter ecclesie anglicane, per quern se clamat privilegari,
depressionem et subversionem manifestam, que omnia et singula alta et maxima
proditio sunt et crimen lese majestatis, nee debet quisquam de iure legis
auxilium petere nee habere qui in ea peccatum committit seu intendit
committere . . .'. The justices may not have had in mind the phrase of
D.
48.4.1.pr: Troximum sacrilegio crimen est quod majestatis dicitur', but the
idea behind the concluding words has an interesting history in civilian and
canonist literature. See (1969) 85 Law Quarterly Review, 472.
7
Appendix II, p. 230.
1
Selden Society, supplementary series, 4, 21-2, and Mr Kaye's comments at
pp.
xxxvi-xxxvii.
x THE LAW OF TREASON IN ENGLAND
punishment, at the same time ensuring that they shall not be
within the reach of royal forfeiture.
The Act of 1352 defined treasons and yet left open the limits
of definition.
1

Into the statutory definitions went many different
ingredients, both feudal and imperial. But the statutory definition
was a legal and not a political definition. To borrow Professor
Bellamy's words,
2
'in England during the later middle ages there
existed not one but two doctrines of treason side by side. One
doctrine was the one which has been the concern of this volume,
the law of treason as seen through the eyes of the king and his
legal advisers. The other was the theory of treason of the barons
and to a lesser extent of the people*. This other doctrine was
founded on a notion of the unity of the nation, rex set against
regnum,
the king against the crown, and with this notion went the
charges of accroaching royal power. But it was a doctrine only
emerging in times of turmoil. 'Seditio regni\ to borrow the phrase
in Glanvill,
3
is not in the Act of 1352, and the later lawyers
repudiated with all their vigour 'the seditious doctrine of the
Despencers' that 'homage and the oath of allegiance are more in
respect of the crown than in respect of the king's person and are
more closely related to the crown than the king's person; and this
is evident because before the right to the crown has descended to
the person, no allegiance is due to him'.
4
The lawyers who de-
veloped the doctrine of double capacities in the fifteenth century
and further developed in the sixteenth century that doctrine with
quasi-theological fervour

5
rejected its application to the law of
treason.
6
1
The reserved power to declare new forms of treasons is one source of the
parliamentary attainders of the fifteenth century, as Professor Bellamy demon-
strates in Ch. 7. More generally, the reservation to parliament accounts largely
for the later developments being legislative rather than judicial in character.
2
Pp. 209-10.
3
I. 2, also XIV. 1: 'Crimen quod in legibus dicitur lese maiestas, ut de nece
vel seditione persone domini regis vel regni vel exercitus.'
4
The opening words of the 'alleged' articles against Gavaston in 1308. The
text is now set out in Richardson and Sayles, The
Governance
of Medieval
England, Appendix VII, at pp. 467 and 469. For the authors' view on the
authenticity of the text,
ibid.
p. 15. But whatever its authenticity, there can be
no doubt as to its later influence and importance.
5
E. H. Kantorowicz, The King's Two
Bodies,
a Study in Medieval Political
Theology,
explores the medieval background. A further study is in Richardson

and Sayles,
The Medieval Governance
of
England,
Ch. VII, 'The Undying King'.
6
The extremes to which such 'seditious doctrine' could lead can be seen in
EDITOR'S PREFACE xi
The metaphysical reasoning of Coke in Calvin's case
1
that
treason, being to 'intend or compass mortem et
destruccionem
domini
regis,
(which must needs be understood of his natural
body, for his politic body is immortal, and not subject to death)'
reflects in figurative language
2
the much more down to earth
attitude of the medieval lawyers. As Maitland
3
wrote, 'the
medieval king was every inch a king, but just for that reason he
was every inch a man and you did not talk nonsense about him.
You did not ascribe to him immortality or ubiquity or such powers
as no mortal can wield. If you said that he was Christ's vicar,
you meant what you said, and you might add that he would
become the servant of the devil if he declined towards tyranny.
And there was little cause for ascribing to him more than one

capacity.' The medieval lawyers found some causes for contrasting
the office of king and the office-holder, but practically none in the
field of treason.
4
Still less did they indulge in artificial jurisprudence
to the degree of raising the crown to the status of a corporation
sole,
though the king might be a part, the head, of
a
truly collective
the parliamentary justification for waging war against Charles I and indeed the
theory upon which the king was accused of treason in 1649.
1
7 Co. Rep. at p. 10 b. And Coke adds, since the indictment concludes
contra ligeantiae suae
debitum,
therefore 'the ligeance is due to the natural body*.
2
The Elizabethan judges used metaphorical language of some extravagance.
Willion
v. Berkley (1561) Plowden 238, and the Case of
the
Duchy of
Lancaster
(1561) Plowden 212 reveal most clearly what Kantorowicz calls the 'mono-
physitic' leanings of the Elizabethan judiciary.
3
The
Crown
as

Corporation,
Collected Papers, III at p. 246.
4
Stephen, History of the
Criminal
Law of
England,
11, 254, n.2, says of the
statute 11 Hen. 7, c. 1 that 'this statute may perhaps be regarded as the earliest
recognition to be found in English law of a possible difference between the
person and the office of the king, though nothing can be more vague and indirect
than the way in which the distinction is hinted at by the words "king and
sovereign lord of this land for the time being".' For a thorough review and re-
interpretation of the purpose of this statute, see A. M. Honore", 'Allegiance and
the usurper', (1967)
Cambridge
Law
Journal,
p. 214. The author is surely correct
in believing that the statute's phrase "king for the time being" does not mean a
king de facto, but simply
means
the person who is king at any given time. But the
author's view that Henry and his parliament contemplated within that de-
scription a future king whose title (on Henry's view) would be illegitimate, and
who would therefore be a usurper, is very hard to accept. For reasons which
cannot here be developed it seems more likely that the statute was thoroughly
'lancastrian' in intention and purpose, and that Henry meant by "king for the
time being" himself
and

his successors whose titles were (from his own dynastic
standpoint) legitimate. Coke and other lawyers reading the text in later ages
interpreted it in
a
manner which turned allegiance in this context into 'a shifting
sand'.
xii
THE LAW OF
TREASON
IN
ENGLAND
body,
a
corporation
in
aggregate.
As
Fineux
C. J.
said
in
1522,
1
'the parliament
of
the king
and the
lords
and the
commons

are a
corporation'. As was
a
lord
or a
commoner,
so
also was
the
feudal
king
a man, and
while
'the
practical application
of the
feudal
theory
of
kingship
in
England
. . .
accounted
for
the development
of representation',
so on a
more theoretical level, ideas
of

royal
theocracy were kept
in
check
as
long
as the
king remained
in any
real sense
a
feudal overlord.
'The
feudal side
of the
king made
him,
as it
were, human.
. . .'
2
But
if the
feudal idea
of
kingship left indelible marks
on the
medieval law
of
treason,

it
cannot satisfactorily and fully account
for the nature
of
treason as
a
crime. Feudal allegiance was essenti-
ally conditional
and
might
be
withdrawn
by
renunciation.
And
similarly
a
seizure
by a
feudal lord might
be
conditional upon
a
return
to
allegiance. When after the loss
of
Normandy King John
seized
the

English lands
of his
Norman nobles who
had
adhered
to
the
king
of
France, those seizures were conditional sequestra-
tions,
'donee terrae fuerint communes', until
the
Normans shall
have returned
to
their allegiance.
It
was only after long lapse
of
time
and the
loss grew permanent, that they hardened into full
and irretrievable forfeitures.
3
Yet
from
the
earliest times
the

Norman kings
had
endeavoured
to
impose allegiance without
restriction
to the
feudal relationships
of
tenure. Homage
or the
act
of
commendation
was not
allowed
to
stand
in the
way,
and
even before liege homage had become owed
to
the king alone,
the
oaths
of
fidelity
or
allegiance

had
been exacted from
all
men.
4
The idea
of
ligeancy was
at
the core
of the
matter, as the lawyers
recognized when every indictment
for
treason charged
a
breach
of
the
duty
of
allegiance, contra ligeantiae suae debitum.
So as a
matter
of
public
law and
duty, homage became something
of an
irrelevance. 'Homage

did not
bind
men
closer
to
their lord
or
1
YB. Mich. 14 H. VIII, f. 3, pi. 2.
2
W.
Ullmann,
A
History
of
Political Thought
in
the
Middle
Ages,
Ch. 5
(III),
'Kingship in England and Constitutionalism', pp. 145-58.
3
The apocryphal statute De Prerogativa Regis c. 14, speaks of forfeiture.
For this change and its significance, see Pollock and Maitland, 1, 461—4, n,
501-2.
4
Ganshof,
Feudalism,

pp. 165-6, writes that 'the idea behind these oaths was
subsequently influenced by the idea of ligeancy, and one came to term all those
who had taken them the liegemen of the king. In the reign of Henry I the crown
insisted that a reservation of fealty should form part of the ordinary oath of
vassalage'.
EDITOR'S PREFACE xiii
introduce
a
new concept
of
fidelity. Men followed their lord
to the
death—or betrayed him—after
the
Conquest
as
they
had
done
before. Liege homage to the king stands apart; but with or without
the ceremony
of
homage
the
duty
of the
subject would remain/
1
The relationship of king and subject prevailed over that of lord and
man,

and the
growth
of the
duty
of
allegiance both instilled
and
distilled
the
nascent ideas
of
nationality
and
alienage.
Professor Bellamy
in
summing
up the
sources
of the
medieval
concept
of
treason concludes
2
that
'the
English
law of
treason

of
the later middle ages
was
founded
on a
Germanic base
but con-
tained also much that was derived either from
the law of
classical
Rome
or
from contemporary European practice'.
The
idea
of
treachery and betrayal was certainly
at
the centre,
or at
one
of
the
centres,
3
but the
further question arises,
who or
what
is

betrayed
or
is the
object
of
treason.
The
answer
of the
medieval lawyers
was,
the
king
or
regal government,
but as
this book truly shows,
the answer however
it
was formulated
in law
reflected
a
political
position,
not
merely
a
theory
of

kingship
nor
always
the
policies
of particular kings,
but the
constant practical need
to
produce
public order.
The law of
treason
in the
later middle ages
was
necessarily created
as the
feudal organization
of
society decayed
and
as the
feudal state was replaced
by
sovereignty.
D.
E. C.
YALE
1

Richardson and Sayles, The
Governance
of Medieval England, p. 112.
2
P. 14.
3
Maitland's geometrical figure which Professor Bellamy chooses as his
opening words.
PREFACE
My interest in the history of medieval treason dates back ten
years or more and sprang, I believe, from my early postgraduate
training under Professor J. S. Roskell. I began serious investiga-
tion in 1961 and continued thereafter whenever the exigencies of
teaching and academic administration allowed. Much of the
present book was offered as a thesis for the degree of Ph.D. of the
University of Nottingham. This work was supervised by Dr R. L.
Storey, who gladly undertook the task of guidance in a field that
was at first unfamiliar to him and did so in a manner which was
encouraging, stimulating and most effective. His deep knowledge
of the Public Records was an immense boon and his criticism,
ever friendly, not less so.
My gratitude is also extended to Professor S. F. C. Milsom,
whose valuable advice has saved me from more than one serious
error, to the General Editor of this Series, Mr D. E. C. Yale,
who pointed out certain omissions, and to my wife, for her
continuous encouragement.
Although I have felt it necessary to go back as far as the laws
of classical Rome by way of introduction, this book is concerned in
essence with the period from the middle of the thirteenth century

to the end of the fifteenth, the prelude to the great treason statute
of 1352 and the aftermath. I feel no obligation to justify the im-
portance of the theme. No one studying the constitutional, the
legal, or the political history of later medieval England can fail
to be impressed by the vital role of treason in the development
of concepts and institutions in this period. Whether I have been
able to do the subject justice is another matter.
Transcripts and translations of Crown-copyright records in the
Public Record Office appear by permission of the Controller of
H.M. Stationery Office.
Carleton
University,
Ottawa J. G. B.
Juneig6g
ABBREVIATIONS
Henrici de Bracton de
Legibus
et
Consuetudinibus
Angliae. References are to the edition of
G. E. Woodbine (New Haven, 1915-42),
unless stated otherwise.
Britton. Ed. F. M. Nichols (Oxford, 1865).
Calendar of. . . Various Chancery Rolls.
Calendar of. . .
Close
Rolls.
Calendar of
Documents

relating to
Scotland.
Ed.
J. Bain (Edinburgh, 1881-4).
Calendar of. Patent Rolls.
Camden Society.
E. Coke, The Third Part of the Institutes of the
Laws of
England
(London, 1797).
English Historical Review.
Fleta, II, Prologue, Bk. I, Bk. II. Ed. H. G.
Richardson and G. O. Sayles (Seld. Soc,
Bracton
Britton
Cal. Chanc. Rolls
Cal.
Close
Rolls
Cal. Docs. Scot.
Cal. Pat. Rolls
Camden Soc.
Coke
Eng. Hist. Rev.
Fleta
Hale M. Hale, Historia Placitorum Coronae: the
History of the Pleas of
the
Crown. Ed. Sollom
Emlyn (London). The edition of 1778 has

been used unless stated otherwise.
K.B.
9 King's Bench, Ancient Indictments (in the
P.R.O.).
K.B.
27 King's Bench, Coram Rege Rolls (in the P.R.O.).
Mirror The Mirror of Justices. Ed. W. J. Whittaker
(Seld. Soc, 1895).
Pollock and Maitland F. Pollock and F. W. Maitland, The History of
English Law before the time of Edward I
(Cambridge, 1895).
P.R.O. Public Record Office, London.
Procs.
and
Ords.
Proceedings
and
Ordinances
of
the
Privy Council.
Ed. N. H. Nicolas (Rec. Comm., 1834-7).
Rec.
Comm. Record Commission.
Rot. Parl. Rotuli Parliamentorum. Ed. J. Strachey and
others (London, 1767).
R.S.
Rolls Series.
Seld. Soc. Selden Society.
Stat. Realm Statutes of the Realm (Rec. Comm., 1810-28).

Stow J. Stow, Annales or a Generall Chronicle of
England.
Ed. E. Howes (London, 1631)
XV111
Trans. Roy. Hist. Soc.
Year Books
Year Books,
Liver des Assises
ABBREVIATIONS
Transactions
of
the
Royal
Historical
Society.
Les Reports del
Cases
en Ley. References are to
the edition of Sawbridge, Rawlins and
Roycroft (London, 1678-9), unless stated
otherwise.
Le Liver des
assises
et plees del Corone within
the same edition of Les Reports del
Cases
en
Ley.
I
THE MEDIEVAL CONCEPT OF TREASON

', said Maitland, 'is a crime which has a vague circum-
ference
and
more than
one
centre*.
1
The law of
treason which
operated in England in the later middle ages had two major centres
or elements, the Germanic and the Roman. This was also true of
the treason laws
of
continental Europe, where
the
relative
im-
portance
of the two
components varied from state
to
state
and
even from province
to
province.
The
Germanic element
was
founded on the idea of betrayal

or
breach of trust
[treubruch]
by
a
man against his lord, while the Roman stemmed from the notion
of
maiestas,
insult
to
those with public authority. Seditio
is the
word often associated
in
medieval writings with
the
Germanic
concept,
laesa maiestatis
with
the
Roman. From
the
time
of
the
collapse of the Roman Empire in the west in the fifth century, the
Germanic idea of breach of trust was in retreat before the intellect-
ually more advanced although partially conflicting notion of
loss

of
majesty. As the invading peoples established primitive states they
absorbed
the
atmosphere
of
Romanitas
and
their rulers assumed
the dignities which they felt were suited
to
the successors
of
the
Roman Emperors. To emulate Roman imperial style, as was often
the aim, meant also to adopt in some degree the ideas of Roman law.
The laws of the Anglo-Saxons were affected by this process more
slowly than those
of
most other Germanic peoples. What Roman
influence there was may have been conveyed
to
England through
the medium of the church. But even among the Anglo-Saxons pure
Germanic treason, wherein loyalty to the lord
was
all and there were
no special sanctions against hostility directed towards the king, can
hardly ever have existed. The earliest
of

Anglo-Saxon law collec-
tions admitted the notion that
it
was
a
crime
to
violate the king's
peace and by the time
of
the laws
of
Ine the idea had arisen that
such crimes were unamendable
and
should
be
dealt with
by the
king because they were in contempt of him.
2
The first recognizable
reference to treason itself
was
in the laws of Alfred, which separated
1
Pollock and Maitland,
n,
503.
2

W.
S.
Holdsworth, History
of
English
Law (3rd edn,
London, 1923),
11,
48-9.
2 THE LAW OF TREASON IN ENGLAND
plotting against the life of the lord from plotting against the life of
the king: perhaps the earliest mention of what were later called
high and petty treason. The same laws showed a definite Roman
influence by their mention not only of open act of treason but also
of the plotting of such a deed, a conception which figured in the
law of
maiestas.
1
The laws of later Saxon kings, those of Athelstan
and Edgar, referred to plotting against lords in general rather than
specifically against the king. Exceptional were the laws of Ethelred
and Cnut, which clearly set out the procedure to be followed in
rebutting charges of high treason, that
is to
say against the monarch.
2
Important for the later history of treason was also the law of
Ethelred which allocated for the crime of false moneying the same
processes and penalties as undergone by traitors.
3

Obviously the Anglo-Saxons, like the other Germanic peoples,
although not perhaps to the same degree, were influenced by the
ideas of Roman law, and their notions of treason were affected by
the concept of
maiestas.
This offence was created in the third
century before Christ as a protection against the impugning of
the authority of plebeian officials by insult or personal injury.
4
The crime was an amalgam of a number of different ideas. There
was the misdeed of
perduellio,
that is to say an act often military
in character which was hostile to the state: for example, deserting
it or comforting or aiding the enemy. There were acts contrary
to the constitution of the state, acts of maladministration by
magistrates, the violation of civic duties both secular and religious,
and personal injury done to magistrates. There was also a category
of
maiestas
which included all types of insult to the emperor, for
example by wearing the imperial purple, destroying a statue of the
emperor, committing adultery with a princess of the imperial
family, using divination, soothsayers or horoscopes to discover the
future in matters of state or concerning the imperial family, and
counterfeiting the emperor's image on coins.
5
Nearly all of these
1
The Laws of the

Earliest English
Kings, ed. F. L. Attenborough (Cambridge,
1922),
pp. 64-7.
2
F. S. Lear,
Treason
in Roman and
Germanic
Law (Austin, 1965), pp. 188-9;
Laws of
the Earliest English
Kings, ed. Attenborough, pp.
130-1;
The Laws of
the
Kings of
England
from Edmund to Henry I, ed. A. J. Robertson (Cambridge,
J
925),
pp. 26-7, 86-7, 206-7.
3
Lear, Treason, pp. 189-90; Laws of the Kings of
England,
ed. Robertson,
pp.
68-9.
4
Lear,

Treason,
pp. 11-12.
5
Ibid.,
pp. 26-9.
THE MEDIEVAL CONCEPT OF TREASON 3
Roman ideas were to reappear in the laws of the European states of
the later middle ages, as were details of interpretation, such as the
blurring of the distinction between intent and actual deed, details
of procedure, such as trial of the accused even after death, and
details of penalty, like the damnation of the traitor's memory, the
confiscation of his property, the denial to his heirs of their in-
heritance and the treating of failure to reveal traitorous plots as
actual complicity. These laws of treason of classical Rome were
confirmed by Justinian in the severer form which they had assumed
in the later years of the Roman Empire in the west, and through
his
Corpus
Juris Civilis were readily available to the lawyers of
later centuries.
From the sixth to the eleventh centuries in Europe, as in Eng-
land, the Roman theory of
maiestas
influenced codes which were
basically Germanic but it never succeeded in supplanting the more
primitive ideas of treason. The medieval mind was hardly mature
enough to understand and apply the concepts of Rome and the
unsophisticated nature of government did not suggest much need
for Roman public law. The law collections which showed greatest
debt to Roman law in general and to Roman treason in particular

were probably the Visigothic Breviary, the Burgundian Papian,
the Leges Alammanorum and the Leges Baiuvariorum. The lese-
majesty of Rome, despite a fleeting appearance in the capitularies
of Charlemagne,
1
did not figure significantly in law again until the
revival of classical learning in the twelfth century. This heralded
the renewed study of Roman law, which was a prime requisite for
the development of new concepts of treason.
From the time of Archbishop Theobald, perhaps even before,
Englishmen went abroad to study Roman law. Bologna was
especially favoured and some, like John of Tilbury and Richard de
Morins, were probably good enough to teach there. Nearly all of
them returned later on to their own country and it must have been
partly on their account that the teaching of Roman law began to
flourish at Oxford, Northampton and other centres.
2
By the later
twelfth century many ecclesiastical libraries were provided with a
good number of books on Roman law, although rather on the
1
Monumenta
Germaniae Historica
(Legum, Sectio II,
tomus
i), ed. A. Boretius
(Hanover, 1883), p. 205.
2
H. G. Richardson and G. O. Sayles, Law and Legislation from
Aethelberht

to
Magna Carta (Edinburgh, 1966), pp. 71-3.
4 THE LAW OF TREASON IN ENGLAND
medieval than the classical variety.
1
A demand for the purer text of
Justinian
was
first noticed towards the end of the reign of Henry II:
it must have arisen from study in greater depth. From about 1160
there was some competition among prominent ecclesiastics to
acquire the services of those skilled in the Roman law, the juris-
peritty
but in fact outside the jurisdiction of the church courts there
were to be few opportunities for the civilian in England. There
was nothing approaching a twelfth-century reception of Roman
law. The influence exerted on the common law was not decisive.
For a time technical terms from the laws of Justinian were applied
to English law, but then the limitations on the use of words which
were not the precise equivalent of the original English were dis-
covered, and the move towards conversion ceased.
2
How far the
thoughts of English common lawyers engaged on a particular
problem were influenced by a knowledge of Roman law, either that
of Justinian or of their own age, there is no way of telling.
Those who wrote treatises on legal matters were more likely
than most to be affected by Roman law. The author known as
Glanvill was patently influenced by Roman manuals of procedure,
the ordines judiciarii, although in arrangement rather than content,

where there was little direct borrowing. Always he bore in mind
the practices of the king's courts and, unlike Bracton later on, he
did not insert whole passages from civilian and canon law. When
he came to deal with treason he showed clearly that the civilian
crime of lese-majesty was in his mind. He referred to the crime
'quod in legibus dicitur lese maiestatis'
:
3
the 'leges' must have
been the Roman
laws.
Two elements of the offence were the killing
or the sedition, that is the betrayal, of the king. For these an
Anglo-Saxon origin seems very likely. The betrayal of the realm
and of the army, which follow, are not so easily explained. The
treason
seditio regni
was not one commonly mentioned by subse-
quent writers. It appeared in the works of only two of the English
thirteenth-century legal treatises, in Fleta and in the Summae of
Ralph Hengham.
4
Whence it derived is difficult to decide. Perhaps
1
Royal Writs in England from the
Conquest
to Glanvill, ed. R. C. Van Caeneg-
hem (Seld. Soc, 1959), pp. 367-70.
2
Richardson and Sayles, Law and

Legislation,
pp. 72-3, 80-2.
3
Glanvill, De
Legibus
et
Consuetudinibus
Regni Angliae, ed. G. E. Woodbine
(New Haven, 1922), p. 42.
4
Radulphi de Hengham Summae, ed. W. H. Dunham (Cambridge, 1932),
p.
5: 'Constat quod placita de crimine lese maiestatis, ut de nece vel seditione
persone domini regis vel regni vel exercitus . . . '; Fleta, p. 57.
THE MEDIEVAL CONCEPT OF TREASON 5
it came from the old Germanic crime of
landesverrat,
which was
treason against land and folk, that is, attempts on the life of the
organized group whether family, community or state. It may have
derived from the works of the continental canonists or decretists or
even the glossators of the Roman law, each of whom laid some
emphasis on love of the fatherland [patria]. The glossators even
suggested it might be treason to fight against the fatherland.
1
Perhaps this speculation is too fanciful and the answer is more
simple. Seditio regni might merely
have
been an early example of the
extension of the aura of majesty from the king's person to his

country. There are other comparable examples of the use of the
word regnum in a treason context but they are rare before the
fourteenth century.
2
It may have been that the word
regnum
was
being used, as it was in the later period, as a synonym for 'crown',
a juristic expression of the unity of the king and his subjects.
Seditio
regni
did not find a place in the treason act of 1352 unless
perhaps it was concealed within the offence of adhering to the
king's enemies.
Like Glanvill, Bracton and Fleta after him both included in
their definition of treason the crime
seditio
(or
seductio)
exercitus,
although like
seditio
regni it did not appear in the act of 1352.
3
Special penalties of the type associated with the gravest of offences
were awarded by the Anglo-Saxons against those who left the
army without permission when the king was present. This was in
the dooms of Ethelred.
4
There were similar rules in continental

Germanic laws, such as those of the Lombards and Franks.
However, since the fomenting of sedition and riots among the
soldiers was considered
laesa maiestas
under the Roman Empire,
Glanvill may equally well have been drawing on a Roman source.
One other type of treason to which this author referred was the
crime of forgery or falsifying. It was not the making of false coin
or of false measures which he specifically distinguished as lese-
majesty, though they were each given separate mention, but the
making of a false royal charter in contrast with forging a private
charter.
5
The Anglo-Saxons were wont to punish false moneyers
1
G. Post, Two Notes on Nationalism in the Middle Ages*, Traditio, ix
(1953),
281-96.
2
Below, chapter 8.
3
Bracton, n, 334; Fleta, p. 56.
4
Laws of the Kings of
England,
ed. Robertson, pp. 86-7.
5
Glanvill, De
Legibus,
ed. Woodbine, p. 179.

6 THE LAW OF TREASON IN ENGLAND
with the same penalties and by the same processes as were used
in cases of high treason, but reference to the forgery of royal
charters is lacking, as is the case in the other less sophisticated
Germanic laws. Thus a Roman origin for GlanvilPs forgery is the
more likely, bearing in mind that the crime of
maiestas
included
counterfeiting, destroying or desecrating or displaying lack of
respect for the image of the emperor divine through making a
fraudulent likeness,
1
and that some alteration or forging of a seal
was likely to have been employed.
For Glanvill therefore the law of treason was a mixture of
Roman and Germanic ideas, but he should not be regarded as the
chief cause of the fusion. Well before the lifetime of this author,
even in the sixth century, Roman and Germanic concepts of
treason were joining together in Europe and even the Anglo-
Saxon kings appropriated Roman ideas useful to their laws.
Glanvill very probably wrote down the rules which judges in his
day had come to accept. The concise formula 'the killing of the
king or the betrayal of the realm or the army* has the ring and
appearance of a neat and pliable contemporary legal maxim. How
it was applied in each case was doubtless for the judges to decide.
The history of the influence of Roman law in thirteenth-century
England is more complex. Its new-found popularity as an import-
ant study for lawyers was no longer maintained: indeed it suffered
some notable defeats. Crucial no doubt were the principles of
government obtaining. The later Angevins displayed a tendency to

ignore due process of law and act how they wished. They were
tempted to override established customs and rights although they
rarely did so openly.
2
What pleased the king might indeed have
had the vigour of law, but even the Angevins found it politic to
clothe their acts with a legal fabric. In their case the law so used
was often Roman and their servants had to have knowledge of it.
Unfortunately for later kings the royal power was decisively
curbed by Magna Carta, the feudal pact by which the king's
aspirations to a theocratic capacity were greatly reduced.
3
None-
theless, Roman law did not lose its foothold in England for about a
century. It could be learned at Oxford, and there was no shortage
1
Lear,
Treason,
p. 119.
2
W. Ullmann, The
Principles
of
Government
and
Politics
in the Middle Ages
(London, 1961), p. 157; J. E. A. Jolliffe, Angevin Kingship (London, 1955),
pp.
60 n, 61 n.

3
Ullmann,
Principles
of
Government,
pp. 160-74.
THE MEDIEVAL CONCEPT OF TREASON 7
of popular textbooks on the subject, which had been translated
into French. Most important was the fact that the king's justices
were often clerics who knew something of the civil law as a result
of their study of canon law. Not until the end of the reign of
Edward I was the judiciary laicized. One particular use which was
found for Roman law in the thirteenth century was to fill gaps in
the young system of English common
law.
Thus there was probably
some copying of civilian and canonical practice in cases of novel
disseisin, even if there is more doubt about the Roman ancestry of
the idea of damages and the actions of trespass and
cessavit.
The
great influence in this field, however, was the writings of Bracton,
who had very definite views of how the Roman law should be
used to combat the weaknesses of the common law. His great
treatise contained not a cross section of cases before the courts
but those cases which were significant to his own point of view,
which was that the confused English system of pleas and writs
needed the assistance of the legal thought of Rome.
1
Propaganda

or not, the treatise influenced lawyers greatly for the next
half-
century, persuading them to make use of
a
number of Roman legal
terms and concepts.
How far was Bracton's definition of treason a derivation of
Roman ideas? He started the relevant chapter by using a few words
from the Institutes and later on utilized Tancred's Ordo Judiciarius
and Glanvill.
2
Like Glanvill he called high treason
laesa
maiestas,
a
term which was used by his copiers and by monastic chroniclers
but which was only accepted by the English chancery clerks in the
reign of Edward IV, and in fact never did find a place in the plea
rolls.
There
traditio,
seditio
or
seductio
and ultimately
proditio
were
preferred. Going beyond Glanvill, Bracton stated that the crime
exceeded in turpitude all other crimes. When he listed the various
categories of

laesa maiestas
Bracton followed Glanvill by regarding
sedition done to the king and his army (but not the realm) as the
central offence. In making as criminal as the actual committing
of treason the misdeeds of procuring treason to be done or giving
aid or consent to those who were plotting treason, even if the
plans were not carried out, Bracton advanced the English doctrine
1
T. F. T. Plucknett, 'The Relations between Roman Law and English
Common Law down to the Sixteenth Century', University of Toronto Law
Journal, m (1939),
37~43-
2
H. G. Richardson, Bracton. The Problem of his Text (Seld. Soc, 1965),
pp.
122-5.